2009 PLP 367 (YLR)

ABDUR RAHMAN FARUQ PIRZADA, J.

Applicant seeks bail in case vide crime No. 12/2001 of Police Station Raza Goth for offences under Ss.302, 396, 337F(i), 337L(ii), 148,149, P.P.C. The F.I.R. was lodged by complainant Abdul Hakeem on 6-9-2001 at about 5-30 a.m. As briefly stated, the prosecution case is that the complainant owned buffaloes which were grazen by himself. About 4/5 years prior to the incident, there had been dispute of complainant party with Qamaruddin and others over the matter of 'Karap'. On 5-9-2001 in the morning, the complainant, his maternal nephew Muhammad Soomar, brother Dhani Bux and son Haji Gharibo had gone for grazing cattle in Shahpur forest when at about 2-30 p.m. they saw and identified accused as Abdul Ghafoor, Abdur Rauf, Imamuddin, all three armed with K.Ks, Shaman with gun Sharafuddin, Naimat, Qalandaroo, Mumtaz with hatchets, Wali Muhammad, Ghous Ali, Wahid Bux, Matoo alias Naimatullah and Qamaruddin with lathies, who came there and stood amidst the cattle. On the challenges made by complainant party, accused persons armed with K.Ks fired straight bursts with intention to commit murder, upon complainant party, whereas accused Abdul Ghafoor fired with K.K. upon Muhammad Soomar who sustained injuries and fell down on the ground while raising cry. The accused with lathies inflicted blows to P.W. Haji Gharibo on various parts of his body. On the cries raised by complainant party and fire-arm reports, P.Ws. Abdul Haq and Abdul Latif came running there, who too saw and identified the accused. Thereafter accused persons robbed 15/20 buffaloes and went away towards west. The complainant party perused the accused persons, but the latter escaped away by taking advantage of forest. Due to non-availability of conveyance and night time, the complainant waited till morning and thereafter lodged F.I.R. on the next day. Learned counsel for the applicant has contested that no overt act of causing any injury whatsoever to the deceased or P.Ws. has been attributed to the applicant. The applicant was only shown to be present at the scene of occurrence being armed with hatchet but the same was not used by him. It has been contended that the specific role of firing with K.K. upon deceased has been assigned to co-accused Abdul Ghafoor, whereas co-accused persons with lathies are stated to have caused blows to P.W. Haji Gharibo. It has been contended that previously the applicant had no knowledge whatsoever about the present case against him, as such there was no question of his abscondence. The learned counsel has argued, that even otherwise the proclama tion proceedings under sections 87/88, Cr.P.C. were not completed against the applicant, as such under the provisions of law, he could not be termed as absconder. In support of his contention, he has submitted certified true copy of case diaries which endorse his contention that although order was passed by learned trial Court for initiating proceedings under sections 87/88, Cr.P.C. but the same proclamation was never published in newspaper as required by law. In support of his arguments, reliance has been placed on the cases as reported in 1989 SCMR 1987, 1990 PCr.LJ 205, 2000 PCr.LJ 1508, 1997 MLD 605 and 2001 YLR 815 etc. It has also been stated that co-accused Ghous Ali has already been granted bail by this Court vide order dated 30-1-2008, who was initially said to be absconder and was arrested in present case on 27-4-2006, whereafter he was granted bail. Present applicant has been arrested on 20-4-2007, since then he is confined in jail custody. Learned A.A.-G. has opposed the bail application on the grounds that the applicant has been specifically named in the F.I.R. to have been armed and come to the scene of occurrence where the alleged offence of murder was committed and thereafter 15/20 buffaloes were robbed away. We have considered the submissions made by learned counsel for the applicant as well as learned A.A.-G. As per FIR, role assigned to the applicant is only that of his presence on the spot being armed with hatchet. Admittedly he did not cause any injury whatsoever to either deceased or to anyone else from the complainant party. As mentioned above, co-accused Abdul Ghafoor had fired fatal shot upon deceased, whereas other co-accused who were armed with Lathies had inflicted blows to P.W. Haji Gharibo. It may be pertinent to note that co-accused Ghous Ali who was assigned role of inflicting lathi blows along with other co-accused armed with lathies, to P.W. Haji Gharibo, was granted bail by this Court. Although co-accused Ghous Ali was aged about 72 years, however, bail was granted to him on merits as well as on the ground of his old age; moreover the observation was made in earlier order passed by this Court that the case of co-accused Ghous Ali required further enquiry as envisaged by the provisions of S.497(2), Cr.P.C., in order to establish the guilt of accused. It has been submitted that the case of the applicant is even on better footings than that co-accused Ghous Ali who is already on bail. So far the point of abscondence is concerned, we agree with the contention of learned counsel for the applicant that in a case, in which proclamation proceedings are not completed, then the accused cannot be termed as absconder under the provisions of law. Respectfully, reliance may be placed on the case of Khan Mir v. Amal Sherin as reported in 1989 SCMR 1987, in which it was clearly held that when no proceedings under sections 87/88, Cr.P.C. were taken against the accused in respect of his abscondence, the accused could not be termed as absconder. In case of Baloo alias Piyar Ali. v. The State as reported in 2000 P.Cr.LJ 1508 it was held that long abscondence of accused could be ignored where the case required further enquiry. In case of Mumtaz v. The State as reported in 1990 PCr.LJ 2055 it was held as under:-- "The trial Court has unnecessarily laid emphasis on the abscondence of the accused and has taken it as a circumstances against him. The learned counsel for the appellant has drawn our attention to the fact that no proceedings under sections 87 and 88 Cr.P.C, were taken against the accused. It is now well-settled that if no such proceedings are taken, the abscon dence is not of much consequence. Abscondence is always a weak form of corroboratory evidence. The accused/appellant has not been declared proclaimed offender. It cannot, therefore, be said that he has absconded merely because he was not readily available to the police." In case of Muhammad Amin Hussain v. The State (1997 MLD 605) it was held that the abscondence per se may not be the sole ground for refusal of bail but it is indeed one of the factors which can be taken into consideration by a Court of law while deciding the question of bail of accused. In support of above view reference may also be made to the cases reported as 2001 YLR 815 and 1991 SCMR

322. With regard to the allegation that 15/20 buffaloes were robbed away, it is surprising to note that neither exact number of buffaloes was shown by the complainant in F.I.R, nor by his son as well as other P.Ws. in their statements under S. 161, Cr.P.C. Moreover, description and features of buffaloes are not mentioned either in F.I.R. or in statements under S. 161, Cr.P.C. It may have been natural and reasonable conduct on the part of complainant party, being the owner of the buffaloes, to know at-least the exact number of their buffaloes which were allegedly robbed away. This factum may create some doubt regarding veracity of the prosecution case. Apart from the other merits of the case, as discussed above, we have also considered rule of consistency while deciding this bail application, as co-accused Ghous Ali has already been granted bail by this Court. Accordingly, applicant would be entitled to the concession of bail, as such this application is allowed and the applicant may be released on bail on furnishing solvent surety in the sum of Rs.100,000 with P.R. bond in the like amount to the satisfaction of learned trial Court. N.H.Q. /N-54/K Bail granted.